Judges weigh legality of domestic surveillance program

February 01, 2007|By LOS ANGELES TIMES

CINCINNATI -- A lawyer for the American Civil Liberties Union urged a federal appeals court yesterday to affirm a lower court decision that the Bush administration's Terrorist Surveillance Program is illegal and that "the president has to obey the law."

But a Justice Department lawyer insisted the program is legal and called on the judges to overturn the ruling, while also arguing that the case is now moot.

A three-judge panel of the U.S. 6th Circuit Court of Appeals peppered them with questions about broad constitutional principles as well as the issue of whether the ACLU's clients have standing to challenge the program.

In August, U.S. District Judge Ella Diggs Taylor in Detroit ruled that warrantless domestic surveillance violated the First and Fourth Amendments to the Constitution and ran afoul of the Foreign Intelligence Surveillance Act.

At the hearing in Cincinnati, Justice Department attorney Gregory Garre stated that when Congress authorized the use of military force after the Sept. 11 attacks, it clearly contemplated that the president would have the authority to conduct counterintelligence surveillance of the type used in the program. He said it would be "unprecedented" for a U.S. court to say that a president did not have such power.

ACLU attorney Ann Beeson countered that the program clearly violated FISA, which requires a warrant to be issued before surveillance is conducted. She told the judges that if they accepted Garre's argument it would, in effect, mean that the FISA law had been overridden without Congress saying it wished to do that.

Garre said the case is moot because of the Jan. 17 announcement by Attorney General Alberto R. Gonzales that the Bush administration had made an agreement with the FISA court to get surveillance warrants there.